ROSS, J., concurs.

the grounds of constitutional invalidity owing to a lack of power in the Legislature to enact, is in effect, if valid, a restriction upon the charter rights granted the appellant by the general law of its organization. Subdivisions (12) and (14) of paragraph 2151 of chapter 4, title 9, of the Revised Statutes of Arizona (Civ. Code) 1913, grant to railroad corporations organized thereunder power:

sion to make and enforce reasonable rules, Į perior court must be affirmed. It is so orregulations, and orders for the convenience, dered. comfort, and safety, and the preservation of the health of the employés and patrons of public service corporations, which grant of power is contained in the last part of the CUNNINGHAM, J. (concurring specially). section. That these two grants of power not Paragraph 2166, Revised Statutes of Arizona only admit of but demand two separate | (Civ. Code) 1913, attacked in this appeal on senses. If, by construction, the first general grant is made to cover all power whatsoever, and be exclusive of any other agency, then the specific exclusive power to prescribe classifications, rates, and charges is superfluous, as is also the permissive authority given to make and enforce reasonable rules, regulations, and orders for the convenience, comfort, and safety, and the preservation of the health of the employés and patrons of the public service corporations. It must likewise follow as a natural sequence that section 10 of article 15 of the Constitution is also a superfluity; that the words designating railways as public highways, and railroad corporations as common carriers, and subjecting them to the control of the law, are the mere skins of thought with no body or meaning whatsoever; that the entire section is an exotic incumbering the ground of the Constitution, and not a plant indigenous to its

soil. We are not called upon, nor is this court permitted, to involve its provisions with an incongruity which must result in so manifest an absurdity. By comparing the commanding words employed in the first part of section 3 with the permissive words found in the last part thereof, and measuring them by the extent of power reserved in section 10 to the legislative branch of the government, we are thus afforded opportune and helpful indication that the grant of power contained in the first part of section 3 is not to be applied without some limitation. It is perfectly clear that neither by direct language, nor by any necessary implication, from the powers granted to the Corporation Commission in section 3, is the police power in this state over a railway as a public highway, or over a railroad corporation as common carrier, vested exclusively in the Corporation Commission. It is equally clear that this power of the state over a railway as a public highway, and over a railroad corporation as a common carrier, may, by a plain mandate, and in the emphatic language of the Constitution, be exercised by the lawmaking department of the government. This is the extent of the matter that must now be determined.

(12) "To establish, execute and enforce all useful and proper rules and regulations for the management of their trains and business, and to secure the comfort, safety and good behavior of their passengers, employés and agents;" and (14) "such corporations shall have such further powers as may be necessary to enable them to exercise and enjoy, fully and completely, the powers granted by this title, and generally all such powers as are usually conferred upon, required and exercised by railroad companies." Paragraph 2150, Id.:

And generally for the purpose of constructing and maintaining and operating said railroad *** and carrying on their business, said corporations shall have and possess all the rights, powers, and privileges which are enjoyed by natural persons.'

The matter of the number of cars making up a train moved over a railroad is a matter pertaining to the operation of trains, and principally concerns the corporation and its employés. The public interests are only remotely affected by the length of the trains moved. A natural person operating a railroad would certainly have the right, power, and privilege, unless restricted by law, to order made up a train consisting of any number of cars, and require such train to be moved over his railroad to the desired destination.

No pretense is made that the Corporation Commission is granted power under section 3 of article 15 of the Constitution to make rules, regulations, and orders which have the effect of altering, amending, or repealing the charter rights or powers of public service corporations. Section 2, article 14, State Constitution, reserves to the legislative power of the state the exclusive right to interfere with the charter powers of corporations formed under general law, as follows:

* *

Laws relating to corporations may be altered, amended, or repealed at any time, and all corporations doing business in the state may, as to such business, be regulated, limited, and restrained by law."

That the statute, in this case attacked for want of power in the Legislature to enact it, has a substantial relation to an object as to Hence the charter rights of railroad corwhich the state is competent to legislate un-porations organized under the provisions of der its police power is not questioned, and the exercise of that power by the Legislature, being nowhere denied in the Constitution, but expressly sanctioned and reserved by the instrument to the legislative department, it follows that the judgment of the su

chapter 4 of title 9, Revised Statutes of Arizona 1913, to move trains composed of any number of cars, was subject to regulation, limitation, or restraint by law. The agency prescribing the "law" providing the regula tion, limitation, or restraint to which the gen

ACTIONS FOR RENT-JOINT LIABILITY OF As.
SIGNEE AND LESSEE.

eral incorporating laws are subject, of which | 3. LANDLORD AND TENANT 225-LEASEthe corporation had notice at the time of its organization, is definitely ascertained by reference to section 14 of article 14, State Constitution, reading as follows:

"This article shall not be construed to deny the right of the legislative power to impose other conditions upon corporations than those herein contained."

Where there is a joint liability of lessee and his assignee for the payment of rent under covenant of the lease, the lessor may pursue his remedy against both at the same time.

4. LANDLORD AND TENANT 208(2)—LEASE -ASSIGNMENT-LIABILITY OF ASSIGNEE FOR

RENT.

BOR.

Appeal from Superior Court, Maricopa County; F. H. Lyman, Judge.

Section 1, article 4, State Constitution, ex-based upon the leasehold interest, and attaches The liability of the assignee of a lease is pressly confines the exercise of the legislative by privity of estate, and continues not only durpower of government to a Legislature, with ing actual possession of premises, but until tera reserved power in the people to propose mination or reassignment of lease. laws and amendments to the Constitution and 5. APPEAL AND ERROR 883-INVITED ERto enact or reject such laws and amendments Where the trial judge was led into the error at the polls, independently of the Legislature. of submitting a question of law to the jury by Hence the power of the Legislature to enact stipulation between the attorneys, such error paragraphs 2166 and 2168, prescribing a regu- forms no basis for complaint by one of the parties to the stipulation. lation limiting the power of the appellant corporation in the operation of its freight trains with regard to the number of cars composing such trains, and prescribing a penalty for a violation of such regulation, is a valid exercise of legislative authority reserved in the government. This power is reserved to be exercised only by the legislative power of the government. The power is not reserved to be exercised by the Corporation Commission, but by the legislative power alone. The intimate relation of the public to the acts regulated by paragraphs 2166, which would bring the regulation within the police power to make, is absent from this case, but ample power is held in reserve by the constitutional provisions indicated to authorize, and does authorize, the enactments in question by the Legislature.

I concur in the order of the court, but I do not concur in placing the authority of the Legislature to enact the law upon the police power of government. I prefer to base the legislation upon the powers expressly reserved, and to hold the exercise of the powers so clearly falling within the constitutional reservations. The judgment should be affirmed.

(19 Ariz. 418)

MCKEE'S CASH STORE v. OTERO et al. (No. 1579.)

(Supreme Court of Arizona. March 30, 1918.) 1. CORPORATIONS 430 PRINCIPAL AND AGENT-MUTUAL LIABILITIES-LEASE.

If lessee was acting for a corporation, but executed the instrument in his own name, covenanting personally to pay the rent as between him and the lessor, he is liable for rent, and the corporation, being the real principal, is also liable therefor, although its name does not appear upon the face of the instrument.

2. LANDLORD AND TENANT 208(1)—LIABILITY OF LESSEE FOR PAYMENT OF RENT-AS

SIGNMENT.

Where lessee contracts individually and assigns the lease to a corporation, the liability of lessee for payment of rent rested on privity of contract which did not terminate on the assignment of lease which merely terminated the privity of estate, and it matters not that lessor accepted assignee and collected rent from it.

Action by Maria O. Otero against McKee's Cash Store, a corporation, and another. Judgment for plaintiff, and defendant named appeals. Affirmed.

lant. C. F. Ainsworth and Fred Blair TownGeorge J. Stoneman, of Phoenix, for appelsend, both of Phoenix, for appellees.

FRANKLIN, C. J. The appellee Maria O. Otero brought this suit to recover of the appellant, McKee's Cash Store, and appellee C. W. McKee the rent for an unexpired term of a written lease, said lease being for a term of five years, from April 1, 1913, to April 1, 1918. The cause was tried to a timony the court, on its own motion, directed court and jury, and at the close of the tesa verdict for the plaintiff against both defendants, and submitted to the jury, on the stipulation of the attorneys for the defend

ants, the question which of said defendants was primarily liable to the plaintiff for the payment of said judgment. The verdict of the jury being that McKee's Cash Store was primarily liable, the judgment was entered accordingly. McKee's Cash Store appeals. The question in this case is whether, as between the appellee Maria O. Otero and Mc

Kee's Cash Store, the latter is liable for the

payment of the rent. The lease was in writing and purported on its face to be made by C. W. McKee with Maria O. Otero. It is a simple nonnegotiable contract. There is no covenant in the lease, nor is there any statutory provision restraining an assignment of

the lease.

The uncontradicted testimony shows that McKee's Cash Store was a corporation engaged in carrying on a grocery business in the city of Phoenix. It occupied the Talbot Building at the corner of First avenue and Adams street. It was a family concern, consisting of a father and two sons. H. A. McKee, the father, was president, C. W. McKee vice president and general manager, and

C. E. McKee the secretary. C. W. McKee practically controlled the business. In the business transactions, the corporation some times used the corporate name and sometimes the name of C. W. McKee. The corporation had added other lines to its stock, and this enlarged business required additional space. Mrs. Otero owned a building on Adams street in the rear of the one the corporation occupied, and it decided to lease these adjoining premises from her. The negotiations for the lease, which finally resulted in the execution of the instrument upon which this suit is based, were carried on between Arthur M. Otero as agent for Mrs. Otero and C. W. McKee as agent for the McKee's Cash Store. It was known to the parties that McKee was contracting as agent for McKee's Cash Store.

highly technical rule that those persons only can be charged who appear upon the face of the instrument to be parties to it does not obtain here. Arizona Life Insurance Co. v. Lindell, 15 Ariz. 471, 140 Pac. 60. Mr. Justice Holmes, in Byington v. Simpson, 134 Mass. 169, 45 Am. Rep. 314, said:

"Whatever the original merits of the rule that a party not mentioned in a simple contract in writing may be charged as a principal upon oral evidence, even where the writing gives no indication of an intent to bind any other person than the signer, we cannot reopen it, for it is as well settled as any part of the law of agency." Mechem says:

"For the purpose of identifying the principal, parol evidence may be admitted. It does not violate the principle which forbids the contradiction of a written agreement by parol evidence, nor that which forbids the discharging of a party by parol from the obligations of his written contract. is the agent discharged; the result is merely The writing is not contradicted, nor that an additional party is made liable." Paragraph 1733, Mechem on Agency.

See, also, Tiffany, Landlord and Tenant, par. 57b, and par. 181e.

other. "This does not deny.' said Parke, B., that it is binding on those whom on the face of it, it purports to bind; but shows that it also binds another, by reason that the act of the his authority is, in law, the act of the princiagent in signing the agreement in pursuance of pal." Bish. Cont. par. 1084.

After the execution of the lease on March 11, 1913, C. W. McKee in writing on the back of the instrument formally assigned the leasehold interest to McKee's Cash Store. The term commenced April 1, 1913, and on or about that day the corporation went into "It is no contradiction of a contract which is possession of the leased premises. This was silent as to the fact to prove that a party is done with the full knowledge of the circum-acting therein not on his own behalf, but for anstances on the part of all the directors and stockholders of the corporation. The corporation thereafter occupied the premises, with the exception of a certain portion which it sublet to another person. This sublease was made for the corporation in the name of C. W. McKee. At the stipulated times the corporation paid to Mrs. Otero the rent, and also collected and received for its own use the rental from the subtenant. This continued until February 1, 1916, when the McKee's Cash Store, without any reassignment, vacated and abandoned the premises and refused to pay rent thereafter. On July 31, 1914, A. D. Stewart bought some of the capital stock and became an officer of the corporation. After the premises were vacated the controversy arose as to who was bound by the lease because Mr. Stewart had not known what took place prior to July 31, 1914, when he became interested in the busi

ness.

[2] In these circumstances there is a double obligation, although there can be but one satisfaction. In the other aspect of the case, if McKee contracted this lease individually and assigned the leasehold estate to the McKee's Cash Store, the liability of the defendants to plaintiff is not substantially different than if the lease had been executed in the name of C. W. McKee individually, but in fact for the McKee's Cash Store as principal.

Mr. Washburn sums up the doctrine in question as follows:

"There is an important distinction to be observed between express and implied covenants in a lease since one who enters into an express covenant remains bound by it, though the lease be assigned over, while such as are implied are coextensive only with the occupation of the premises; the lessee, for instance, not being liable under his implied covenant for rent after his asby the lessor from the assignee. The lessee remains liable upon his express covenant to pay rent, notwithstanding his having assigned his lease with the lessor's assent, and the lessor may have accepted rent from the assignee. The lessor, in such case, may sue the lessee, or his assignee, or both, at his election and at the same time though he can have but one satisfaction. The lessee continues liable upon his personal covenant, in the nature of a surety for his assignee, who is ultimately liable to him for the amount paid by him. But the liability of a lessee upon the implied covenants in his lease continues only so long as he holds the estate, where he assigns with the consent of the lessor, and depends upon the privity of estate. This is true in respect to assignees, both as to express and implied covenants, and their liability ceases with the privity of estate between them and the lesSuch assignee, therefore, is not liable for

[1] The complaint was drawn upon the theory that C. W. McKee leased the proper-signment to another, and the acceptance of rent ty individually, and thereafter assigned the leasehold estate to the McKee's Cash Store. Upon the facts of this case, however, the liability of the defendants is so plain in either of two aspects presented by the testimony that we should be astute to uphold the judgment of the superior court. If McKee, in executing the lease, was acting for and on behalf of the corporation, nevertheless he executed the instrument in his own name, covenanting personally to pay the rent, and as between him and the lessor he is liable for the payment of the rent. But, the corporation being the real principal and the party for whose benefit the contract made, it is also liable for the rent.

was

The sors.

any breach committed before he became as-presumption would have been that it occusignee, nor for any such breach occurring after pied under the lease. The rule being that he has parted with the estate and possession to when a person other than the lessee is in posa new assignee, although he did this for the very purpose of escaping such liability, because by so doing he destroys the privity of estate on which it depends." Washburn on Real Property (4th Ed.) pp. 493, 494.

session of leased premises when the rent accrues, or has occupied the whole of the unexpired term of the lease, in an action by the lessor to recover rent from such person, the [3] The lease contained an express cove presumption is that the occupancy is under nant to pay rent, and the liability of the les- an assignment of such lease. Such presumpsee rests on privity of contract which did tion, however, is rebuttable, and may be overnot terminate on the assignment of the lease. thrown by showing a different relation exThe assignment merely terminated the privi-ists between the occupant and lessee. One ty of estate, and, this being so, it matters of the leading cases to this effect is Redford not if the lessor accepted the assignee as such v. Terhune, 30 N. Y. 453, 86 Am. Dec. 394. and collected the rents from it. There was See, also, Leadbetter v. Pewtherer, 61 Or. a joint liability of the assignee and lessee, 168, 121 Pac. 799, Ann. Cas. 1914B, 464; Mcand the lessor had the right to pursue his Adam, Landlord and Tenant, p. 554; 24 Cyc. remedy against both at the same time, though, 1181, 1222; 1 Tiffany, Landlord and Tenant, of course, with but one satisfaction. See p. 950. While such a presumption would, McBee v. Sampson (C. C.) 66 Fed. 416; Whet- perhaps, not exist under the facts of this stone v. McCartney, 32 Mo. App. 430; Peo- case, the McKee's Cash Store having abanple v. German Bank, 126 App. Div. 231, 110 doned the premises before the rent in suit N. Y. Supp. 291; Schlesinger v. Perper, 70 accrued, nevertheless the fact that the corpoMisc. Rep. 250, 126 N. Y. Supp. 731. ration went into possession of the premises at the beginning of the term, paid the rents to the lessor, and received the rents from a subtenant during its occupancy, would not detract from the positive testimony of C. W. McKee that he assigned the lease to the corporation and put it into possession of the property under the lease and its assignment, but rather tend to corroborate his testimony.

[4] The liability of C. W. McKee attaches by privity of contract, and the assignment to McKee's Cash Store containing no express condition on its part to pay the rents reserved for the term, its liability attaches by privity of estate. The right to enjoy the leasehold interest as distinguished from the actual possession of the premises is the principle upon which rests the assignee's liability to the lessor. In Moline v. Portland Brewing Co., 73 Or. 532, 144 Pac. 572, the court said:

"The assignee of the lease becomes liable for the rent by reason of the privity of estate, and not by reason of the occupancy of the premises; and by mere abandonment thereof he cannot escape liability."

See, also, McLean v. Caldwell, 107 Tenn. 138, 64 S. W. 16; Chicago Attachment Co. v. Davis Sewing Machine Co. (Ill.) 25 N. E. 669; Bonetti v. Treat, 91 Cal. 223, 27 Pac. 612, 14 L. R. A. 151.

If the McKee's Cash Store, as assignee, wished its liability to pay rent to continue only during its actual possession of the premises, it should have reassigned the lease as well as abandoned the possession. By so doing the privity of estate would have terminated. If appellant had been in possession of the premises when the rent accrued, the

We can entertain no doubt that on either of the grounds stated the uncontradicted testimony showed a liability on the part of both defendants to appellant. A contrary verdict would find no substantial support in the evidence. As between the defendants C. W. MeKee and the McKee's Cash Store, the liability of McKee was in the nature of a surety for the corporation; the latter being ultimately liable to McKee for any amount paid by him, whether as agent for his principal or as assignor for his assignee.

[5] The trial judge was led into the error of submitting a pure question of law to the jury by stipulation between the attorneys for the defendants. If in doing this error was committed, it affords no basis for complaint by one of the parties to the stipulation.

Upon the whole case, the judgment is right, and ought to be affirmed. It is so ordered.

ROSS and CUNNINGHAM, JJ., concur.

(102 Kan. 307, 563)

STUART V. KANSAS CITY.

(No. 21247.) (Supreme Court of Kansas. Jan. 12, 1918. On Rehearing, April 12, 1918.)

(Syllabus by the Court.)

1. MASTER AND SERVANT 373-WORKMEN'S COMPENSATION ACT-INJURY BY ACCIDENT ARISING OUT OF EMPLOYMENT.

and light department, and, at the time of the injury which is the basis of this action, was engaged in mixing and carrying mortar to other workmen, who were repairing boilers in the defendant's plant. The other workmen were working about 20 feet above the ground. After mixing the mortar, the plaintiff carried it in a bucket to a hook on the An employé was injured by having mortar end of a rope and attached the bucket thereplayfully or wantonly thrown into his eye by to, and William Deeds, one of the workmen, a fellow workman. The injured employé was at the time engaged in his regular work of mix- elevated the mortar and delivered it to other ing and carrying mortar. The fellow workman workmen who were laying brick. Just before was in the habit of playing pranks or jokes he was injured, the plaintiff had taken a on the other workmen, and that habit was known bucket of mortar and attached it to the rope, to the immediate superiors of the injured employé. The employment was governed by the and had then stepped back about 25 feet and Workmen's Compensation Act (Gen. St. 1915, looked up toward William Deeds to see when §§ 5896-5942). Held, that the injured employé the bucket was returned, and to ascertain if is entitled to compensation under that act for the injuries inflicted on him; and further held he wanted anything. While thus standing, a that the mere fact that an injury to an employé piece of green mortar made of lime, sand, and is occasioned by the sportive or malicious act cement fell or was thrown into the plaintiff's of a fellow employé does not, of itself, estab-eye, which was thereby seriously injured. lish that the injury arose out of the employment.

2. MASTER AND SERVANT 378-WORKMEN's COMPENSATION ACT-INJURIES-COMPENSA

(Additional Syllabus by Editorial Staff.) 4. MASTER AND SERVANT 408-WORKMEN's COMPENSATION ACT CAUSE OF INJURYQUESTION FOR JURY. In an action for compensation under the Workmen's Compensation Act held, on the evidence, that whether plaintiff was injured by mortar thrown by a fellow servant in sport, whether the fellow servant habitually indulged in dangerous play, and, if so, whether such habit was known to defendant were questions for the jury.

Appeal from District Court, Wyandotte County.

On the trial, the plaintiff, in substance, tes tified that he supposed, but did not know, that Deeds threw the mortar. The plaintif testified, in part, as follows:

"Q. Did you see Mr. Deeds just before you A. Yes, sir. Q. What was he dowere hit? ing? A. Standing upon this platform. Q. Was he making motions of any kind? A. No. Q. Had he made any? A. Well, just before this for [fell] in my eye, he got down on his hands and knees and looked under the platformı and made circular swing with his right arm as though reaching for something; might hav tossed something out of his hand, I couldn' say. Q. Did you see any mortar leave his hand? A. No, sir. Q. Did you see any in it? A. I didn't see any in it. Q. You thought at the time he did throw it, did you? A. Yes, I thought at the time he threw it."

There was abundant evidence, largely in the nature of admissions made by the plaintiff, to show that Deeds had playfully thrown the mortar. There was evidence to show that Deeds was playful, sportive, and inclined to play pranks or jokes on his fellow workmen, and that this was known by his immediate superiors at the plant.

The jury answered special questions as follows:

"Question 1: Did the injury to the plaintiff arise out of and in the course of his employAnswer: Yes.

Action by Clayton L. Stuart against the City of Kansas City, Kan. Judgment awarding compensation under Workmen's Compen-ment? sation Act, and defendant appeals. Reversed, and new trial directed upon particular questions.

Lee Judy, of Kansas City, Kan., Hogsett & Boyle, of Kansas City, Mo., and T. F. Railsback, Thomas M. Van Cleave, and H. J. Smith, all of Kansas City, Kan., for appellant. Emerson & Smith, of Kansas City, Kan., for appellee.

MARSHALL, J. The plaintiff recovered Judgment under the Workmen's Compensation Act for $1,690, and the defendant appeals.

The plaintiff was employed by the defendant as a laborer in the defendant's water

"Question 2: How many weeks has the plaintiff been totally incapacitated for labor beyond a period of two weeks next succeeding the date of the injury, if any? Answer: Seventeen weeks.

"Question 3: Will the plaintiff continue to be totally incapacitated for labor in the future, and, if so, for how many weeks do you find such total incapacity will, in all probability, continue? Answer: Not totally incapacitated.

"Question 4: How many weeks in all do you find the plaintiff has been and will in all probability be partially incapacitated in the future, beyond the period for which you allow him for total incapacity, if any? Answer: 397 weeks.

"Question 5: What is the average weekly wages received by plaintiff in his employment for 52 weeks next prior to the date of the injury? Answer: $12.00 per week.

"Question 6: If you find the plaintiff is partially incapacitated from labor by his injury,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
171 P.-58